Yesterday, California's 36th Congressional District held a special primary election to fill the US House seat vacated by Democrat Jane Harman shortly after her re-election last year. This was the first election for a US House seat held under California's new top two primary system. According to the CA Secretary of State's semi-official tally, Democrat Janice Hahn and Republican Craig Huey have taken the top two spots in the field of sixteen candidates. (The situation looked fairly different when I submitted today's article for CAIVN late last night, reporting that two Democrats were likely to take the top two spots.) If and when Hahn and Huey are declared the official winners of the race, they will then proceed to the general election runoff in which they will be the only two candidates on the ballot. This result is likely to surprise mainstream political observers, many of whom expected Hahn and Democrat Debra Bowen to easily trounce their Republican, independent and third party rivals.

For many supporters of alternatives to the Democratic-Republican two-party duopoly, the difference between a general election with two Democrats, or two Republicans, or one of each on the ballot, is likely negligible to non-existent. There are a number of lawsuits pending against the top two style primary. Among them are one in Washington state challenging the constitutionality of the top two system as such, and at least two in California challenging a number of provisions specific to the legal scaffolding of the Golden State's newly instituted system. For an extensive discussion of the suits, see this presentation by Richard Winger and Gautam Dutta filmed at the general assembly of the Green party of California earlier this month.

Dutta is the attorney representing the plaintiffs in one of the lawsuits against California's system. One of the plaintiffs in that suit, Michael Chamness, was a candidate in the special primary election for the 36th Congressional District. Though a member of the newly-formed Coffee Party, Chamness was forced to state on the ballot that he has "no party preference" because the Coffee Party is not one of the six parties officially recognized by the state (i.e. Democrat, Republican, American Independent, Green, Peace and Freedom, and Libertarian). Chamness's suit thus claims that the implementing law for the top two primary forces him to lie to voters. Under California's old system, he would at least have been allowed to identify himself as "independent."

Under the implementing law for California's top two system – namely, Senate Bill 6, passed as part of a late night budget deal in February 2009 – the partisan labeling system thus privileges the category of party and then narrows the definition of party to include only a small number of such groups, with a high bar to maintain inclusion in the set of permitted partisan designations. Even despite the claims in Chamness's suit, this might appear reasonable enough to some observers. But there remains an underlying contradiction between these rules and the overall logic of the primary system itself.

The law implementing California's Proposition 14 replaced the old party-nominated/partisan system of offices with what is termed a "voter-nominated" system of offices. See this release from the Secretary of State contrasting the two systems. Under the old system, the winner of a particular party's primary election become that party's official nominee. This is not the case under top two. The candidates on yesterday's ballot in CD-36, for instance, do not technically represent their parties. Party designations reflect only the individual affiliation of the given candidate, not an official endorsement from the party. Nor does their election in a primary mean that they become the "official" candidate of their chosen party. It is for this reason that you can end up with a choice between two candidates from the same party on the general election ballot. See this release from the Secretary of State on voter-nominated offices.

As candidates under California's top two primary system are no longer running for a partisan office, but rather a voter-nominated office, the partisan labeling scheme limiting the party designations that a given candidate may choose from to describe him- or herself on the ballot must be considered an anachronism of the old system and should be abolished. The new system has changed the very nature of the office, but this change is not coherently reflected in the partisan labeling system utilized on the ballot.

3 comments:

The idea of a state being able to officially recognize parties and refuse recognition to others like the Coffee Party is just plain wrong. Parties aren't created for the convenience of election officals or ballot makers. But as you note, the logic of the California law points toward elections based on people, not parties. The question for independents becomes whether they want to promote new brands or the good of the polity. For the state, the choice is between unconditional recognition of all party labels or completely ending the organization of elections around parties. However you look at it, it looks like Californians have a lot of work to do.

It looks like there are definitely a lot of major and minor tweaks that are going to be necessary so long as the current law is on the books. On this issue, I don't see any reason why an individual candidate shouldn't be able to write whatever the hell they want next to their name on the ballot, within the space provided. It would seem to be a clear-cut first amendment issue.

Another big issue concerns write-in candidates and the votes cast for them. As I understand it, it is possible for there to be write-in candidates on the primary ballot. And there is still space for write-in candidates on the general election ballots even though it is supposed to be a two-person run-off. But the law literally stipulates that votes cast for write-in candidates on the general election ballot simply WON'T BE COUNTED!

Officials of Independent Voting, and also Independent Voice (which are associated with each other) have consistently, for months now, declined to comment on some of the problems with the California top-two law. Even Fred Newman, the founder of the group that now calls itself Independent Voting, has not responded.